Ooi Han Sun and Another v Bee Hua Meng

JudgeYong Pung How CJ
Judgment Date30 May 1991
Neutral Citation[1991] SGHC 73
Citation[1991] SGHC 73
Defendant CounselLee Yuk Lan (Goh Poh & Partners)
Published date19 September 2003
Plaintiff CounselR Karuppan (Murphy & Dunbar)
Date30 May 1991
Docket NumberSuit No 6412 of 1985
CourtHigh Court (Singapore)
Subject MatterPersonal injuries cases,Res ipsa loquitur,Victim a Malaysian,Loss of dependency,Road accident,'Ex turpi causa non oritur actio' did not apply in tort to give a good defence,Tort,Burden of proof,Plaintiff working illegally in Singapore,Damages in foreign currency,Whether loss of earnings to be based on earnings in Malaysia,Defendant having control of motor vehicle,Measure of damages,Victim a passenger,Damages,Tort committed in Singapore,Negligence,Possibility of widow remarrying,Whether public policy would allow plaintiff to be compensated for loss of earnings based on wages arising from working illegally in Singapore,Discretion of court,Rare occurrence among Asian widows,Shifting of burden

At about 7am in the morning on 20 July 1983, the first plaintiff and Chua Peung Young (the deceased) were two of the nine passengers travelling to work at the back of their employer`s motor pick-up, which was driven by another employee, the defendant, along Jalan Ahmad Ibrahim towards Tuas when the pick-up overturned. The first plaintiff was injured and the deceased was killed.

According to the police investigation officer who arrived at the scene at 8.25am and prepared a sketch plan of the scene, the weather was fine, the stretch of road was straight, the road surface was dry, visibility was clear and, at that time, the traffic flow was moderate.
The pick-up was lying overturned on the centre lane of the three-lane highway. There were no brake marks, but there were two scratch marks, both running within the centre lane and leading to the pick-up; the left scratch mark was 11m 40cm, and the right scratch mark was 7m 60cm in length.

The pick-up was inspected by a mechanical engineer at the Traffic Police Division that afternoon.
It was found to be in working condition; it had done about 50,000km, the hand brake and the foot brake systems were in working order, the steering system had no defect and the tyres were in serviceable condition. The damage to the pick-up was listed as front windscreen glass broken; roof badly dented; front bonnet dented; right front signal light broken; right front fender slightly dented; right passenger`s door windscreen glass broken; right side iron railing bent; left passenger door slightly dented; left and right front fenders dented; and both rear view mirrors damaged.

The first plaintiff was unable to recall how the accident occurred because he was dozing off at the time; neither were the other passengers who were seated with him at the back of the pick-up.
Also, no other persons responded to the police call for witnesses. The plaintiffs were therefore not in a position on their own to discharge the burden of proof placed upon them by providing any specific acts or omissions on the part of the defendant which would qualify as negligent conduct. However, in this case, the mere fact that the accident happened speaks for itself and, in applying the maxim res ipsa loquitur, the court can draw an inference of negligence against the defendant so as to establish a prima facie case against him. In a much quoted passage in the leading case of Scott v St Katherine Docks Co Scott v St Katherine Docks Co (1865) 3 H & C 596; 159 ER 665 , Erle CJ said:

There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.



In the present case, the pick-up was at all times under the control and management of the defendant, and the accident which resulted in the pick-up overturning in the middle of the road could not have happened in the ordinary course of things without negligence on the defendant`s part.
A burden is therefore cast upon the defendant, and he must show how the accident actually occurred, and how this was consistent with due care on his part. In other words, he must rebut the inference of negligence raised against him: VVV Menon v Henri Pigeonneau [1957] MLJ 85 ; Halijah v Velaitham [1966] 1 MLJ 192 .

The defendant gave evidence on his own behalf.
He said that he had only been working for the employer for about a week before the accident. He was not employed as a driver, but as a fitter; his employer, Ching Thiam Wah, had been keeping late nights recently and was tired, and so he had also been driving the pick-up, to help out. On the day of the accident, his employer was seated beside him in the front cabin. Although he had said in his police report that the traffic flow was heavy, he said in his evidence in court that it was moderate. Just before the accident, he was travelling in the centre lane, following a taxi, and there was some other traffic in front of the taxi. He was travelling at between 40 and 50 according to the speedometer, but he could not explain whether this was in kilometres or in miles per hour, and he was not sure if his pick-up had a speed limit indicator. As he was on his way to work, he was afraid he might be late. So when he reached the place of the accident, and he saw that there was no traffic behind him in the right lane, he gave right-turn signal and sounded his horn in preparation to overtake the taxi. He then swerved his pick-up into the third lane, in order to accelerate and overtake the taxi. At that same moment, however, without giving any signal, the taxi also swerved to the right and into his path. It was 3 to 4ft from the front of his pick-up. He applied his foot brakes, without jamming on them, but in doing so he became excited, and he did not know what happened, but somehow he lost control of the pick-up. It veered towards the right and hit the kerb. At that point, he lost consciousness. When he came to, he saw that his pick-up had overturned and was lying in the middle of the road. Under cross-examination, he conceded that he could have turned the steering wheel for a brief moment, but he did not really know. But he could not have mounted the kerb on to the road divider, much less hit the lamp-post or a tree on the divider.

Ching Thiam Wah (Ching), the employer, gave evidence for the defendant.
He was seated in the front cabin of the pick-up, beside the defendant who was driving. He did not appear to have been paying much attention to the passage of the pick-up, however, as he said that he had decided to be relaxed from the moment he boarded the pick-up at the start of the journey. He clarified this to mean that he was alternately opening and closing his eyes as they went along. Just before the accident, however, while still relaxing in this manner, he lit a cigarette, and while doing so he noted that there was a taxi in front of them, and other traffic in front of the taxi. At that time the pick-up was 10 to 12ft behind the taxi. The defendant pulled over to the right lane to overtake the taxi and, when the pick-up was already three-quarters on the right lane and the taxi was only 3 to 4ft in front of it, the taxi suddenly swerved into the path of the pick-up. The defendant thereupon swerved further to the right, but hit the kerb, and the pick-up overturned.

The defence then was that the accident was caused by the driver of an unknown taxi, who suddenly and without warning swerved to the right and cut into the path of the defendant just as the defendant was about to overtake him.
In order to avoid a collision with the taxi, the defendant was forced to swerve and apply his brake. But, in spite of this, the defendant was unable to avoid colliding with the road divider. The defence therefore was that the taxi driver was solely, or at least partly, to blame.

The accident occurred in July 1983, almost eight years ago, and it is inevitable that the memories of even the most honest witnesses will have become blurred with the long passage of time.
The unreliability of such evidence is greater when the witness is an interested party in the proceedings. In Mace v R & H Green and Silley Weir Ltd & Anor [1959] 2 WLR 504; [1959] 1 All ER 655 , Lord Parker CJ had this to say on the subject at p 506:

This matter arises nearly six years after the event. I am not saying that anybody is particularly to blame but it makes the task of witnesses and of the court extremely difficult. Memories, anyhow, are liable to fail and after six years they are almost bound to fail. Moreover, one is bound to be suspicious of the plaintiff`s claim in those circumstances; one approaches the matter on the basis that it may be something that he has gradually in the course of time conjured up, and one is bound to look at his evidence with great suspicion. Again, from the point of view of the court, it is often impossible in these circumstances to accept the whole of the evidence of any one witness, however honest he is and however much he may be trying to tell the truth. Six years after the event witnesses may with the best will in the world be at fault.



As the evidence unfolded in the present case, I had the greatest difficulty in believing the defendant and his employer, Ching, and in accepting their version of what happened.
The employer had at least the excuse that he was dozing half the time, but there was no reason why the defendant should not have been able to explain more clearly what happened. Although he was quite articulate, he avoided direct answers to many questions and I formed the impression that the gaps in his account of the accident were due as much to his not having thought out the detailed answers to possible questions in advance, as to the failure of his memory from the passage of time. I therefore did not accept their version of how the accident happened.

There may well have been a taxi in front of the defendant`s pick-up at some time that morning: indeed, there was other traffic at the time, but in my opinion none of them contributed to the accident.
It was put to the defendant in cross-examination that he had been overtaking other vehicles left and right, which he denied. By his own admission, however, he was already travelling at a good speed, but he was afraid that they might all be late for work, and he was therefore not averse to overtaking other vehicles in front of him. Even if there had been a taxi which swerved in front of him and caused the accident in the way that he alleged, he was clearly driving much too closely behind it, when he started his move to overtake it. He should have been a good three car lengths behind the taxi when he pulled over to the right: See The Highway Code , paras 60...

To continue reading

Request your trial
10 cases
  • Zhao Feng Guo v Tan Hong Soon t/a Intense Engineering Construction
    • Singapore
    • High Court (Singapore)
    • 6 May 2003
    ...would not have been sued. I agree with the Senior Assistant Registrar that counsel’s reliance on Ooi Han Sun & Anor v Bee Hua Meng [1991] SLR 824 was misplaced. That was a case dealing with the quantification of damages arising from a road accident. The court there held that the maxim ex tu......
  • Ling Kee Ling and Another v Leow Leng Siong and Others ( No 2)
    • Singapore
    • High Court (Singapore)
    • 9 September 1994
  • Muthan Sinnathambi v Puran Singh
    • Singapore
    • High Court (Singapore)
    • 8 May 1992
    ... ... In other words, he must rebut the inference of negligence raised against him: Ooi Han Sun & Anor v Bee Hua Meng [1991] 3 MLJ 219 In his evidence, the defendant said that he was a technician in the Singapore Armed Forces with the rank of Staff Sergeant and the ... When he had gone about 100m along Old Jurong Road, he saw a lorry travelling about another 100m ahead of him. The lorry was moving very slowly and, within another 100m or so, he had caught up to within three to four car lengths behind it, ... ...
  • Indo Commercial Society (Pte) Ltd v Ebrahim and Another
    • Singapore
    • High Court (Singapore)
    • 31 August 1992
    ... ... seem strange to ask this question when Miliangos [1976] AC 443 [1975] 3 All ER 801 has been applied on a number of occasions in Singapore (see ` The Vishva Pratibha` ; Sarathi Co v `Vishva Pratibha` (Owners of); Port of Bombay, India [1980] 2 MLJ 265 Ooi Han Sun v Bee Hua Meng [1991] 3 MLJ 219 Tatung Electronics (S) Pte Ltd v Binatone International Ltd [1991] 3 MLJ 212 and Wardley Ltd v Tunku Adnan & Anor [1991] 3 MLJ 366 ) as well as in Malaysia (see Lee Tai Hoo v Lee Swee Keat [1987] 1 MLJ 304 Popular Industries Ltd v Eastern Garment ... ...
  • Request a trial to view additional results
2 books & journal articles
  • REFORMING ILLEGALITY IN PRIVATE LAW
    • Singapore
    • Singapore Academy of Law Journal No. 2009, December 2009
    • 1 December 2009
    ...courts to seek better explanations: eg, Progress and Properties Ltd v Craft(1975—1976) 135 CLR 651; Gala v Preston(1991) 100 ALR 29. 59 [1991] SLR 824. 60 [1991] SLR 824 at [18]. 61 [2003] 2 SLR 417. 62 [2003] 2 SLR 417 at [7]. 63 [2005] 4 SLR 214. 64 [2005] 4 SLR 214 at [52], citing the La......
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2017, December 2017
    • 1 December 2017
    ...d/o Shunmugam v Chia Kok Hoong [2017] SGHC 153 at [7]. 146 See para 26.86 above for the three conditions. 147 [2018] 3 SLR 160. 148 [1991] 1 SLR(R) 922. 149 [2014] 1 WLR 2889. 150 [2018] 3 SLR 480. 151 Cap 354A, 2009 Rev Ed. 152 Jurong Primewide Pte Ltd v Moh Seng Cranes Pte Ltd [2014] 2 SL......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT